Gajendiran A/Lv.Vellarsamy v 1. ) LIM Ah Bee (BA-22NCvC-226-05/2021)

LIM AH BEE

CHONG EI LING

YOONG SOO FAH

TAN POH TEK

5.

PENDAFTAR HAKMILIK NEGERI SELANGOR …DEFENDAN-DEFENDAN 29/10/2025 16:10:09 BA-22NCvC-226-05/2021 Kand. 137 S/N H/ocG8ykMkuzTbnqDBOz2Q GROUNDS OF JUDGMENT Introduction [1] The Plaintiff seeks to recover a piece of land for the estate of Chockalingam Chettiar alias MNM Muthukaruppen Chetty alias M.S.M.M Karuppan Chetty alias Payna Reena Avena Supramaniam Chetty s/o Nagappa Chettiar alias Raman Chetty alias Periakaruppan Chetty (“Supramaniam”) deceased, but which through the alleged wrongful actions of the defendants, it has been deprived of. [2] The Plaintiff’s locus and authority to bring the present suit arises from the following events. [3] When Supramaniam died on 27.5.1958, his son Palaniappan applied for and was granted Letters of Administration issued on 17.12.1968. However, Palaniappan passed away on 25.6.2016, leaving the estate unadministered. [4] On 11.7.2018, Palaniappan’s son, Baskaran, obtained Letters of Administration De Bonis Non in respect of the estate of Supramaniam. As Baskaran is living in India, he appointed the Plaintiff as his attorney through a Power of Attorney dated 11.7.2018 (“the PA”) to do all that was necessary in respect of the immovable property of the estate of Supramaniam. Both the Plaintiff and Baskaran are in fact cousins as both are the grandsons of Supramaniam. S/N H/ocG8ykMkuzTbnqDBOz2Q [5]

the land which forms the subject matter of this action is held under GM 274, Lot 324 (previously known as EMR 2057 and then as EMR 2516), Mukim Hulu Semenyih, Daerah Hulu Langat (“the said Land”);

(ii) the original grant in respect of EMR 2057 shows that on 21.4.1926, the said Land was registered in the name of Payna Reena Avena Supramaniam Chetty s/o Periakaruppan Chetty, one of the several names of Supramaniam;

(iii) Supramaniam continued to be the registered owner of the said Land until his death on 27.5.1958. In the grant of the Letters of Administration issued on 17.12.1968 to his son S/N H/ocG8ykMkuzTbnqDBOz2Q Palaniappan, the said Land was listed in the Schedule of Property attached to the grant;

(iv) Sometime in 2018, the Plaintiff conducted a search on the said Land. The search showed the said Land was registered in the name of the 2nd Defendant (“D2”), and there were also prior transactions which were suspected to be fraudulent;

Upon this discovery, the Plaintiff made a police report on 24.10.2018. He also took steps to file a discovery action against the 5th and 6th Defendant (“D5” and “D6”) vide Originating Summons BA-24-14-04/2019 in the Shah Alam High Court o 24.4.2019, requesting for the documents relating to the various transactions shown on the title. D5 and D6 furnished the documents applied for, save for three documents;

(vi) The documents furnished by D5 and D6 revealed that on or around 29.11.2016, a Change in Name transaction was presented vide Presentation No. 6288/2016. The transaction was processed by the land office of Hulu Langat wherein the registered proprietor of the said Land was then changed from Supramaniam to P. R. A. Subramaniam Cheety A/L Periakaruppan Cheety (“P. R. A. Subra”) bearing IC no. 361205-08-5453;

(vii) Subsequent to the name change, vide Presentation No. 802/2017, the said Land was transferred from P. R. A. Subra to D1 on 15.2.2017; S/N H/ocG8ykMkuzTbnqDBOz2Q

(viii) Shortly thereafter, D1 executed a Sales and Purchase Agreement dated 15.5.2017 with D3 and D4 to sell them the said Land for a consideration sum of RM 600,000. Upon executing the SPA, a deposit of RM 60,000.00 was paid to D1;

(ix) Pending completion of the 1st SPA, D1 entered into another Sales and Purchase Agreement with D2 dated 5.6.2017. Vide Presentation No. 4315/2017, the said Land was registered in D2’s name on 21.6.2017;

In view of D1’s actions of entering into two separate agreements, D3 and D4 commenced in action in the Shah Alam High Court vide Suit No.: BA-22NCVC-535-09/2017 (“Suit 535”) against D1, D2 and D5 seeking for various declarations and orders;

(xi) On 21.2.2019, Suit 535 was decided in favour of D3 and D4. The High Court granted the following reliefs, inter alia;

A declaration that D1 had breached the SPA entered with D3 and D4 in failing to comply with his obligations pursuant to the terms of the SPA;

A declaration for the said Land to be transferred from D2 to D1; and

An order for specific performance of D1’s obligations under the SPA.

(xii) Consequent to the decision in Suit 535, D2 filed an appeal in the Court of Appeal. Counsel for the parties informed that the appeal has been stayed pending the disposal of this suit. The Plaintiff has also applied to intervene in the appeal. The Plaintiff’s case [7] The Plaintiff’s case is that the said Land was registered in D2’s name as a result of fraud perpetrated in three main transactions, commencing from the Change in Name transaction from Supramaniam’s name to P.R.A Subra, followed with the registration of the transfer from P.R.A Subra to D1 and finally the registration of the transfer from D1 to D2. Claim against D1 [8] The case against D1 is that the title in her name came about from fraudulent antecedents. The identity card no. (“IC no.”) of P.R.A Subra in the title shows him to be born in 1936. However, Supramaniam became the registered proprietor in 1926. Therefore, both Supramaniam and P.R.A Subra could not have been the same person. [9] The IC no. P.R.A Subra is fictitious as there are no records of such an IC with the National Registration Department. In other words, a fake IC was used to effect the name change from Supramaniam to P.R.A Subra. In all likelihood, P.R.A Subra is a non-existent person. S/N H/ocG8ykMkuzTbnqDBOz2Q [10] The transfer from P.R.A Subra to D1 vide Presentation no. 802/2017 is questionable as the documents supplied by D5 and D6 in the discovery action showed breaches and lapses in the actions taken. In any event, consequent upon the fraudulent Change In Name transaction, P.R.A Subra did not have any title to pass to D1. The maxim nemo dat quod non habet applies, and the registration in the name of D1 is consequently, void. Claim against D2 [11] The registration of the said Land in the name of D2 is also suspect.

a declaration that the Change of Name transaction vide Presentation no. 6288/2016 on 29.11.2016 in which P. R. A Subra was registered as the proprietor of the said Land is null and void;

(ii) a declaration that the transfer from P. R. A Subra to D1 vide Presentation no. 802/2017 on 15.2.2017 is null and void and S/N H/ocG8ykMkuzTbnqDBOz2Q consequently any right and interest of D1 in the said Land is null and void;

(iii) a declaration that the transfer from D1 to D2 vide Memorandum of Transfer and presented vide Presentation no. 4315/2107 on 21.6.2017 is null and void, and consequently any right and interest of D2 in the said Land is null and void;

(iv) an order that the judgment of the Shah Alam High Court in Suit 535 be set aside, in particular the order for specific performance of the SPA between D1 and D3 and D4; and

general, aggravated and exemplary damages. Defendants’ Defence 1st Defendant [16] It ought to be mentioned that although D1 was served with the Writ of Summons, she did not file any Appearance. A certificate of non-appearance was applied for and issued by this court on 21.7.2021. 2nd Defendant [17] As for D2, she was initially represented by a firm of solicitors. However, on 17.4.2025 her solicitors applied to discharge themselves. During the hearing of the application to withdraw as solicitors, her then solicitors intimated that D2 did not wish to defend the action. She neither engaged new solicitors nor appeared in S/N H/ocG8ykMkuzTbnqDBOz2Q person to testify at the commencement of the trial. There is no evidence by her to be considered. All that is before the court is her Statement of Defence and the averments therein. [18] However, the provisions of O. 35 r. 1(2) Rules of Court 2012 allow the court to proceed with trial of the action and judgment may be given based on the evidence adduced by the Plaintiff. 3rd and 4th Defendants [19] D3 and D4’s relies on the outcome of three suits to contend that all issues now raised in these proceedings are precluded by the doctrine of res judicata. The three suits are as follows:

Suit 535 which was decided on 21.2.2019, in which the D3 and D4 were granted inter alia, a declaration that the title to the said Land ought to be transferred from D2 to D1 and an order for specific performance of the SPA entered into with D1;

(ii) Suit BA-24NCVC-1356-08/2019 (“Suit 1356”), which was commenced by D3 and D4 against the Plaintiff, D5 and D6 to remove the caveat entered by the Plaintiff on 8.1.2019. The Plaintiff did not appear to contest the suit. On 20.7.2020, the High Court ordered for the caveat to be removed; and

(iii) Suit BA-24NCVC-1058-10/2020 (Suit 1058”) was commenced by D3 and D4 against D5 and D6 pursuant to s. 417 of the National Land Code. On 3.2.2021, a Consent Judgment was entered. The order given were inter alia, that S/N H/ocG8ykMkuzTbnqDBOz2Q D5 and D6 agreed to take all necessary action, including cancelling records of dealings on the land in order to give effect to the judgment in Suit 535. Parties also agreed that Lim Ah Bee, D1 in this action, was to be re-registered as the proprietor. [20] In view of the outcome of these suits, D3 and D4 contend that the Plaintiff cannot attempt to re-litigate the same issues that have already been conclusively decided in these suits. 5th and 6th Defendant [21] D5 and D6 deny the allegations of negligence and breach of statutory duty. Instead, it is contended on their behalf that all actions taken in processing the chain of transactions had been done properly and in accordance with the law. The defendants further contend that s. 22 of the National Land Code affords them protection from liability for any action taken in good faith in the performance of their duties. Witnesses [22] To establish his case, the Plaintiff called three witnesses to testify. PW1 is an officer from the National Registration Department. PW2 is currently serving in the Ulu Langat land office. The Plaintiff (PW3) also testified on his own behalf. It transpired at the trial that Baskaran is not robust in health. A medical certificate was adduced by his counsel as evidence of his ill health. S/N H/ocG8ykMkuzTbnqDBOz2Q [23] D3 (DW1) testified on behalf of himself and D4. D5 and D6 called 3 witnesses. DW2 is the officer who, at the material time handled the processing of the Change In Name Transaction. DW3 is presently attached to the unit in charge of registration pertaining to land dealings. DW4 was previously attached to same unit but no longer. Issues for determination [24] Arising from the contention of the parties, I consider it necessary to determine the following broad issues which will have a bearing on the parties’ respective rights and liabilities:

Whether there was fraud in the Change In Name transaction resulting in the registration of the said Land in P. R. A Subra’s name and consequently the maxim of nemo dat quod non habet apply to render D1’s title defective;

(ii) Whether there was fraud in the registration of the transfer from P. R. A Subra to D1?

(iii) Whether there was fraud in the registration of the transfer from D1 to D2;

(iv) Whether D3 and D4 had any rights or interest in the said Land;

Whether D5 and D6 were in breach of their duty of care and statutory duties; and

(vi) The remedies available to the Plaintiff consequent upon the determination of the above issues. S/N H/ocG8ykMkuzTbnqDBOz2Q Findings and analysis of this court [25] In weighing and evaluating the evidence, I am mindful of two fundamental principles. The first is with respect to the burden of proof. It is trite law that a plaintiff bears the burden of proof on a balance of probabilities. This principle was well enunciated in the Federal Court case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697). If on the evidence, the Plaintiff succeeds in establishing a prima facie case, the burden then shifts to the Defendants to rebut the case against them by credible evidence in an attempt to tilt the balance in their favour. [26] The second principle to bear in mind is that the standard of proof for fraud in a civil case has now been conclusively settled by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1. It is on a balance of probabilities. Preliminary issue-Plaintiff’s locus [27] Before dealing with the core issues, I shall deal with a preliminary issue on the locus of the Plaintiff to bring this action. [28] When the trial started I enquired of counsel for D3 and D4 whether the locus of the Plaintiff is disputed. The confirmation was sought as Baskaran is not present as a witness to confirm the grant of the PA by him. The response was in the negative. D5 and D6 also took the same position that they do not dispute the locus of the Plaintiff. S/N H/ocG8ykMkuzTbnqDBOz2Q [29] However, in the written submissions filed counsel for D3 and D4, they appear to have resiled from the earlier stand by questioning the Plaintiff’s relationship with Baskaran and Supramaniam. Counsel referred to the contents of Form 19B and the Statutory Declaration affirmed by the Plaintiff in support of the entry of the private caveat to contend that the locus of the Plaintiff is in doubt. It was submitted that Baskaran was appointed as Administrator De Bonis Non only on 28.8.2018. Therefore, on 23.7.2018, Baskaran was in no position to appoint the Plaintiff as his lawful attorney. [30] This apparent confusion can be clarified by reference to the relevant documents. The Letters of Administration De Bonis Non was in fact granted to Baskaran on 11.7.2018, and not 28.8.2018. Therefore, on 11.7.2018 Baskaran in his capacity as the Administrator De Bonis Non for the estate of Supramaniam, could lawfully appoint the Plaintiff as his attorney. The PA was filed and registered in the High Court of Kuala Lumpur on 23.7.2018. The discrepancy which D3 and D4 made much of has in fact been clarified in the Plaintiff’s Amended Reply to their Defence. [31] In the circumstances, based on the documentary evidence, there is no dispute on the Plaintiff’s locus in initiating this suit as the lawful attorney of Baskaran who in turn is the Administrator De Bonis Non for the estate of Supramaniam. S/N H/ocG8ykMkuzTbnqDBOz2Q Whether there was fraud in the registration of the said Land in P. R. A Subra’s name [32] The genesis of the fraud which led to the estate of Supramaniam being deprived of the said Land, was the Change In Name transaction. [33] Unlike a transfer, a name change does not involve a transfer of rights in the land from one entity to another. The name change is merely to change the name of the registered owner appearing in the title to another name of his and/or, as in this case, to add further details such as the IC no. In other words, the registered owner prior to the name change and after the name change is one and the same person. [34] According to the available documents, P. R. A Subra’s IC no. was 361205-08-5453. This would mean that he was born in 1936. However, the said Land was registered in Supramaniam in 1926, ten years prior to the birth of P. R. A Subra’s birth. The only logical conclusion to draw is that the said Supramaniam and P. R. A Subra cannot refer to the same person. It is simply impossible. [35] To further confirm his suspicion of fraud, the Plaintiff instructed his solicitors to conduct a search on the IC no. of P. R. A Subra. JPN replied via email to inform that P. R. A Supramaniam Chetty A/L Periakaruppan Chetty of IC No. 361205085453 did not exist in the records of the National Registration Department (“NRD”). S/N H/ocG8ykMkuzTbnqDBOz2Q [36] On this issue, the evidence of PW1, the officer from NRD is crucial. Asked by the Plaintiff’s counsel as to what was meant by ‘tiada rekod’ as informed in JPN’s email, he said that “tiada rekod merujuk kepada tiada maklumat nombor kad pengenalan tersebut dalam sistem JPN.” [37] There is yet another piece of critical evidence. Supramaniam was an Indian national. His death certificate evidencing his nationality was included in the agreed bundle of documents. He died on 27.5.1958. The Change of Name transaction vide Presentation no. 6288/2016 was presented on 29.11.2016. The obvious conclusion is that Supramaniam having died some half a century prior, could not have applied for a name change. Instead a bogus person impersonating Supramaniam was instrumental to the Change in Name transaction. [38] The records kept at the office of D6 showed no IC was requested for or furnished at the time the Change in Name Transaction was presented. DW2 and DW4 confirmed in cross examination that an application for a Change of Name transaction must be accompanied with the IC of the applicant. DW2 expressly admitted that there is no record showing the P. R. A. Subra furnished his IC for the Change of Name transaction. [39] In spite of their testimony that it was the standard procedure to request the applicant for his IC, there was an obvious disregard for due compliance of the procedure. S/N H/ocG8ykMkuzTbnqDBOz2Q [40] By a process of discovery, the Plaintiff was able to obtain documents pertaining to Presentation no. 6288/2016. A receipt was issued for the amount of RM 30.00 However, in the portion stating the name of the applicant, only the name PRA Supramaniam Chetty a/l Periakaruppan was stated. The IC no. was not stated. DW2 conceded as much in his evidence. The inference to draw is that no IC was furnished. [41] However, what is more startling is the fact that there is no record of the original title presented during the Change of Name transaction. To a question asked by the court whether the title must be presented, DW2 expressly confirmed that the original title must be furnished. Once the name change is effected, the original title will then be cancelled. In cross, DW2 conceded that there is no record of the original title ever being surrendered to the land office. [42] To compound matters, DW2 said affirmatively that the person known as P. R. A. Subra did not attend before him for the Change in Name transaction. He was also unsure if P. R. A. Subra had appeared before his subordinate for verification of documents before the documents were escalated to him. The particular subordinate, although listed as a witness in D5 and D6’s List of witnesses, was however, not called to testify. [43] In the circumstances, there could not have been a genuine application for a name change by Supramaniam. At the time of the Change In Name transaction, he had passed away. The person who impersonated Supramaniam in order to apply for the name change was undoubtedly a fraudster. The entire transaction to register P. R. S/N H/ocG8ykMkuzTbnqDBOz2Q A Subra as the owner on the title was clearly fraudulent and must therefore be void. Consequently although P. R. A Subra’s name appeared on the title as the registered owner, he did not have a title to the said Land, and he was not the lawful owner. Whether there was fraud in the transfer of said Land from P. R. A. Subra to D1 [44] Shortly after the said Land was registered in the name of P. R. A. Subra, the said Land was transferred to D1 on 15.2.2017 vide Presentation No. 802/201, as shown from the information on the title. Apart from what is apparent on the title, there are no documents to shed light on the circumstances of the transfer, such as the Memorandum of Transfer (“MOT”). DW2 and DW3 testified that for the said Land to be transferred, the original title must be presented to the land office together with the MOT. The MOT will be kept by the land office. In spite of the discovery application by the Plaintiff, it was not supplied to him. The MOT was not in evidence at the trial. Added to this, is the fact that D1 did not defend the suit and hence the court is no clearer as to how D1 came to be the registered owner. [45] In any event, having found that P. R. A Subra did not have a title he is incapable of passing any to D1. The maxim nemo dat quod non habet-which means one cannot give what one does not have, applies. The principle has been explained in several cases. [46] In Simpang Empat Plantation Sdn Bhd v Ali bin Tan Sri Abdul Kadir & Ors, [2006] 1 MLJ 193, the Court of Appeal held, S/N H/ocG8ykMkuzTbnqDBOz2Q That brings me to the other respondents, in particular the sixth respondent. If the receivers and managers had no right to sell, then no title could ever pass to the purchaser — nemo dat quod non habet. That has been settled by the judgment of Wan Yahya SCJ in M & J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd & Anor [1994] 1 MLJ 294 at p 309 where he said: A purchaser of land might fail to obtain a good title in two distinct ways. Firstly, if the title of the vendor is bad. Secondly, even if the vendor has a good title, there might be some invalidating defects in the conveyance or transaction in which the purchaser attempted to obtain the title. These transactions might be void or voidable for a variety of reasons. In the case of a defect in the vendor's title, the common law rule, is that no person can give a better title than he had — nemo dat quod non habet. [47] Similarly, the Federal Court in Sia Hiong Tee & Ors v Chong Su Kong & Ors. [2015] 4 MLJ 188 held, The nemo dat rule literally means ‘no-one can transfer what he has not got’ (Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Limited [1949] 1 KB 322 as per Denning LJ). This is sometimes called the ‘derivation’ principle: the transferee’s rights derived from those of the transferor. The nemo dat rule protects the true owner of the goods (right of ownership) and the innocent purchaser who purchases the goods from non-owner gets no title as the non-owner could not pass good title because he has none. [48] Applying the principles enunciated in decided cases, P. R. A. Subra could not transfer any title to D1 as he had none. Consequently, D1 did not obtain any title to the said Land. S/N H/ocG8ykMkuzTbnqDBOz2Q [49] D1’s title is also defeated on another ground. The fact that D1 obtained registration of the title would render her title indefeasible as provided for in s. 340 of the National Land Code as follows, Registration to confer indefeasible title or interest, except in certain circumstances

(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible. [50] However, s. 340(2) then carves out three circumstances in which the title of ‘the person for the time being registered as proprietor’ ’shall not be indefeasible’. The exceptions to the indefeasibility of title is provided for in paragraph (2) reproduced below,

The title or interest of any such person or body shall not be indefeasible—

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law. S/N H/ocG8ykMkuzTbnqDBOz2Q [51] Thus, the concept of indefeasibility of title is therefore not absolute and can be successfully challenged if a plaintiff can bring his case within one of the vitiating circumstances set out above. (See: Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ 987; He-Con Sdn Bhd v Bulyah Ishak & Anor [2020] 4 MLJ 662; See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank (M) Bhd and another appeal [2021] 5 MLJ 759). [52] I find cogent evidence to suggest the registration in D1’s name was procured by fraud. Firstly, there is no record of any MOT to support P. R. A. Subra’s transfer to D1. Secondly, the transfer to D1 was on 15.2.2017, shortly after the Change In Name Transaction on 29.11.2016. There are numerous cases that have held that the haste of the prior transactions is indicative of fraud or knowledge of fraud on the part of the purchaser. (See: Setiakon Engineering Sdn Bhd v Mak Yan Tai & Anor [2024] 5 MLJ 460 (FC), Yap Ham Seow v Fatimawati bt Ismail & Ors and another appeal [2014] 1 MLJ 645 (CoA)). [53] Thirdly, D1 did not contest this suit, evident by fact she did not attend nor file any documents although served with the cause papers. This court is entitled to consider any plausible evidence adduced against D1. If by such evidence, the Plaintiff can establish a case which warrants a rebuttal from D1, then the failure of D1 to answer to the evidence presented must result in the Plaintiff having proved his case. The failure of D1 to cross-examine will amount to an acceptance of the evidence of the Plaintiff. S/N H/ocG8ykMkuzTbnqDBOz2Q [54] Since the evidence strongly suggests D1 is also privy to the fraud, I find that her title is defective and not indefeasible. Whether there was fraud in the transfer of said Land from D1 to D2 [55] Like D1, D2 did not participate in the trial, as she had discharged her counsel and chose not to attend the hearing. The Plaintiff’s case against D2 is that she had also obtained the registration of title by fraud. [56] On the face of it, the evidence is suggestive of fraud on D2’s part. The registration to D2’s name was on 21.6.2017 a mere 4 months after the D1 obtained registration. A prudent purchaser would have done a search which would have revealed the hurried prior transactions. This fact ought to have served as red flags. [57] The MOT in respect of this transaction was included in the Bundle of Documents. Having perused the MOT, the consideration sum stated therein was RM 2,000,000.00. There is also evidence of a SPA executed on 5.6.2017. [58] It is immediately apparent that the registration was procured within two weeks of executing the SPA. In normal conveyancing, the transfer is presented for registration only upon payment of the balance purchase price. It is most unusual for purchaser to have raised a huge sum within two weeks. [59] Although D2’s Statement of Defence cannot be considered as evidence, it throws some light on the position she would have taken S/N H/ocG8ykMkuzTbnqDBOz2Q at the trial. D2 stated that she paid a deposit of RM 150,000.00 to D1. She then applied for a loan from Agrobank Shah Alam on 20.6.2017 which was approved on 2.10.2017. From the facts in her defence, it can be surmised that she had procured the registration of the said Land her name even before the loan application was approved, and when she had yet to pay the balance purchase price of RM 1,850,000.00. This fact strongly suggests a questionable registration. To my mind, the registration is prima evidence of fraud, which D2 by not participating in the trial, failed to rebut. [60] 1 therefore find that the Plaintiff has established a case of fraud against D2 and the registration of title in her name must be set aside. Whether D3 and D4 have any rights in the said Land [61] I now come to the Plaintiff’s case against D3 and D4. Both had entered into an agreement with D1 on 15.5.2017 to buy the said Land. They then obtained a judgment in Suit 535 against D1 for specific performance of the SPA on 21.2.2019. Their rights to the said Land have therefore been conclusively decided. [62] The specific reliefs sought by the Plaintiff against them are as follows:

A declaration that the SPA dated 15.5.2017 entered into between D1 as Vendor and D3 and D4 as Purchasers is null and void; and

(ii) An order to set aside the judgment dated 21.2.2019 issued in respect of Suit 535, in particular paragraph 12(g) granting specific performance of the SPA against D1 in favour of D3 and D4; and

(iii) All private caveats entered into by D3 and D4 be set aside. [63] In defence, both D3 and D4 rely on the doctrine of res judicata to contend the Plaintiff is now precluded from claiming ownership of the said Land. [64] In addition, there is another suit Plaintiff is precluded from relitigating the issues already decided therein. This is Originating Summons No: BA-24NCVC-1058-10/2020 (Suit 1058). Suit 1068 was filed by D3 and D4 against D5 after they were successful in Suit 535, seeking orders which would allow them to obtain the benefit of the judgment. With the consent of D5, a consent judgment was recorded on 3.2.2021 wherein the name of D1 was to be restored as the registered proprietor of the said Land and that D5 was to take all necessary action to give effect to the judgment in Suit 535. [65] The short answer to the res judicata point relied on is that it is wholly misconceived. The Plaintiff was not a party to Suit 535 nor Suit

Res judicata cannot be raised against a non-party in the earlier proceedings. The Federal Court in Farlim Properties Sdn Bhd v Goh Keat Poh & Ors [2003] 4 MLJ 654 had this to say, Whatever it is res judicata can never be applied in favour of the defendants because res judicata only prohibits a cause of action from being re-litigated between the same parties but in that case the S/N H/ocG8ykMkuzTbnqDBOz2Q defendants were never a party. And in Gerak Indera Sdn Bhd lwn Farlim Properties Sdn Bhd although the defendants were a party, res judicata, whether in the narrow sense or the wider sense, cannot apply because the matter involved in the case is in respect of an interlocutory order relating to injunctions. It is trite law that for res judicata to apply the proceedings must have resulted in a final judgment or decree, that is to say, the one which adjudges the ultimate rights of the parties or finally puts the case out of court. [66] Although I find that the defence of res judicata cannot be raised against the Plaintiff, I must say I have reservations whether this court can set aside the judgment in Suit 535 as prayed for by the Plaintiff. The Plaintiff contends that D1 who never had a good title to the said Land cannot be ordered to specifically perform the SPA. Consequently, the judgment in Suit 535 must be set aside by this court. [67] I am of the view that if the judgment in Suit 535 is to be set aside, it can only be done in proceedings to impeach the judgment. This should be done by filing a fresh action for that purpose. The law on impeachment of judgments was comprehensively enunciated in the Federal Court judgment in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1. The party applying to impeach must prove that the judgment was delivered not competent to deliver it or was obtained by fraud or collusion. It also goes without saying that the party applying to impeach must have been a party in the earlier proceedings; the Plaintiff was not. S/N H/ocG8ykMkuzTbnqDBOz2Q [68] I would therefore decline to set aside the judgment in Suit 535 which in any event, is pending appeal. However, I am also of the view that having proved the registration in the names of P. R. A Subra, D1 and D2 are fraudulent, the Plaintiff is entitled to recover the said Land. The Plaintiff’s right to the said Land would prevail over all other subsequent interests. Negligence and breach of statutory duties by D5 and D6 [69] I had ascertained from counsel representing D5 and D6 as to the correct entity responsible for documentation pertaining to land transactions. She clarified that as the title in question is GM (Geran Mukim), D5 is the party responsible for matters pertaining to the registration of the said Land. In view of this, no liability is to be attached to D6. [70] The Federal Court in Pendaftar Hak Milik Pejabat Pendaftaran Wilayah Persekutuan Kuala Lumpur & Anor [2016] 6 MLJ 413 was of the view that both causes of action can co-exist. It held, We would like to state here that a common law duty of care can arise in the performance of a statutory function. In the instant case, the second defendant had a statutory function to ensure that the records entered in the register of titles and maintained in the office of the second defendant contained particulars which are accurate. A failure of that duty can give rise to the coexistence of statutory duty and common law duty of care (see the case of X (minors) v Bedfordshire County Council; M (a minor) v Newham London Borough Council; E (a minor) v Dorset County Council [1995] 3 WLR 152). S/N H/ocG8ykMkuzTbnqDBOz2Q [71] The duty lies with D5 to ensure that all due care is taken in processing the Change in Name Transaction and subsequent registration to ensure that the lawful proprietor of the said Land is registered in the title. [72] I find the Plaintiff’s case premised upon both causes of action established. Some of the evidence had been dealt with earlier when dealing the Plaintiff’s case against D1. My reasons are as follows. [73] DW2 was the person in charge of registration of titles at the material time. In cross, he conceded that the IC of the applicant for the Name In Change transaction was not furnished. He stated that it was the practice of the land office to require a copy of the IC for a change in name transaction. Having stated the standard operating procedure, he conceded that to date there is no record of the IC produced for the name change to P. R. A Subra. I do not find this surprising as the NRD had confirmed the non-existence of such IC. [74] This then begs the next question, if it was not furnished, how could DW2 or his officers have allowed the IC no. to appear on the title? Even if it was not furnished, based on the IC no. given, how could D5 or his officers not notice that that P. R. A Subra was born 10 years after the said Land was registered in Supramaniam’s name? [75] An identity card is an important document to verify identity, and there is no excuse not to have requested for it. Judicial notice is taken of the fact that most transactions/dealings in government departments require one to produce his/her identity card. S/N H/ocG8ykMkuzTbnqDBOz2Q [76] A statutory declaration (“SD”) was furnished in support of the Change In Name transaction. Upon perusing the SD, I note that the IC no. was stated in the SD. Therefore, it was imperative that DW2 and his officers should have requested for the IC in order to verify the identity of person requesting for the name change. The omission can only be but negligence. [77] The evidence of DW2 in re-examination was even more inexplicable. He was asked by his counsel to confirm that it was not necessary for the applicant to attend in person. He reiterated that he was not required to do so. His answer was, to say the least, shocking. If this is the procedure adopted for Change In Name transactions, then it would certainly leave the door open for fraudulent transactions. [78] In addition, DW2 stated that the original grant must be produced for a Change in Name Transaction. Once the change is made, the original grant will be cancelled. However, DW2 confirmed that there is no such record of the original grant being returned or surrendered to the land office. [79] The other witnesses for D5 had no useful evidence to adduce save for the fact that they confirmed the lack of documentation in their possession. Apart from what was stated in the title, there was no documentation kept in respect of the Presentation No. 802/2017 wherein the said Land was transferred from P. R. A Subra to D1. The circumstances of the transfer remain a mystery. Although the name and subsequent transfer to D1 were events that took place in 2017 just 4 years prior to the filing of this suit, I find it surprising that S/N H/ocG8ykMkuzTbnqDBOz2Q the documents were not available. The defence witnesses admitted to this fact, without proffering a reasonable and acceptable reason for the unavailability of the documents. [80] The evidence against D5 which was barely rebutted by their evidence, shows serious breach of protocol and want of care in handling transactions. I find a preponderance of evidence establishing negligence and breach of statutory duty. [81] The defence raised the statutory protection in s. 22 of the National Land Code which reads, Protection of officers

No officer appointed under this Part shall be liable to be sued in any civil court for any act or matter done, or ordered to be done or omitted to be done, by him in good faith and in the intended exercise of any power, or performance of any duty, conferred or imposed on him by or under this Act [82] I am of the view that where there is such questionable conduct on the part of the officers of D5 as seen from the evidence, they cannot be said to be acting in good faith. Consequently, they are not entitled to the shield and protection of s. 22 of the National Land Code. (See: Poh Yang Hong v Ng Lai Yin & Ors [2010] MLJU 806, Uptown Properties Sdn Bhd v Pentadbir Tanah Wilayah Persekutuan & Ors [2012] 8 MLJ 713). [83] In view of the wrongful actions of D5, the Plaintiff seeks to be compensated in damages against D5. As the claim for aggravated S/N H/ocG8ykMkuzTbnqDBOz2Q and exemplary damages is withdrawn, the Plaintiff seeks an order for general damages. Conclusion Reliefs to be granted [84] Premised on the findings as aforesaid, it leaves me now to consider the reliefs sought by the Plaintiff. [85] Paragraph 62 (a) to (t) of the Statement of Claim sets out reliefs pertaining to all the defendants. Consequent upon the Plaintiff having established its claim that the Change in Name Transaction to P. R. A Subra and transfer to D1 was fraudulent, the following reliefs are allowed:

Prayer (a) for a declaration that the Change in Name Transaction from Chockalingam Chettiar alias MNM Muthukaruppen Chetty alias M.S.M.M Karuppan Chetty alias Payna Reena Avena Supramaniam Chetty s/o Nagappa Chettiar alias Raman Chetty alias Periakaruppan Chetty (“Supramaniam”) to P. R. A Subramaniam Cheety a/l Periakaruppan Cheety (IC No: 361205-08-5453)(“P. R. A. Subra”) vide Presentation No: 6288/2016 and registered on 29.11.2016 in respect of land held under title GM 274, Lot 324, Mukim Hulu Semenyih, Daerah Hulu Langat (“said Land”) is null and void ab initio;

(ii) Prayer (b) for a declaration that at all material times, the registered right and interest of P. R. A Subra on the said Land is null and void ab initio;

(iii) Prayer (d) for a declaration that the transfer of the said Land by P. R. A Subra to D1 vide Presentation No. 802/2017 and registered on 15.2.2017 is null and void ab initio;

(iv) Prayer (e) for a declaration that at all material times, the registered right and interest of D1 on the said Land is null and void ab initio;

Prayer (g) for a declaration that the transfer of the said Land by D1 to D2 vide Memorandum of Transfer presented in Presentation No. 4315/2017 and registered on 21.6.2017 is null and void ab initio;

(vi) Prayer (h) for a declaration that at all material times, the registered right and interest of D2 on the said Land is null and void ab initio;

(vii) Prayer (j) is allowed as amended, for a declaration that the estate of Supramaniam is the beneficial owner of the said Land;

(viii) Prayer (l) for an order that the registration of D2 on the title to the said Land be set aside and cancelled;

(ix) Prayer (m) for an order that the names of P. R. A Subra, D1 and D2 appearing on the title to the said Land and all other records showing the same as kept by D5 be cancelled; S/N H/ocG8ykMkuzTbnqDBOz2Q

Prayer (n) for an order that D1 and D2 be prohibited from any dealings in the said Land;

(xi) Prayer (q) for an order that the title to the said Land be transmitted to/vested in Baskaran Palaniappan as the administrator de bonis non for the estate of Supramaniam, within 14 days of the order made herein;

(xii) Prayer (r) that D5 take all necessary action to give effect to the above orders;

(xiii) Prayer (s) for damages in respect of D5. I consider a sum of RM 50,000.00 to be reasonable damages consequent upon the breach of duties to compensate the estate of Supramaniam for the losses suffered as a result of the wrongful acts, which contributed to the estate being divested of the said Land; and

(xiv) The claim against D6 is dismissed as D5 is the only party responsible. [86] The other orders prayed for are not allowed. The reliefs pertaining to a declaration that the various SPA entered are null and void are not warranted as the Plaintiff is not a party to the contract. The reliefs pertaining to the removal of caveats ought to be commenced in a different action. I am of the view that the reliefs ordered suffice for the purpose of giving effect to the rights of the estate of Supramaniam as sought by the Plaintiff. S/N H/ocG8ykMkuzTbnqDBOz2Q [87] Consequent upon the reliefs granted, I also make the following order in respect of costs:

D1 is to pay the Plaintiff costs of RM 10,000.00;

(ii) D2 is to pay the Plaintiff costs of RM 20,000.00;

(iii) D3 and D4 is to pay the Plaintiff costs of RM 30,000.00; and

(iv) D5 is to pay the Plaintiff costs of RM 20,000.00. Dated: 29th of October 2025 -sgd-Alice Loke Yee Ching Judge High Court Shah Alam S/N H/ocG8ykMkuzTbnqDBOz2Q Counsel for Plaintiff: Mr. Krishna Dallumah (Mr Venka Arun, Ms Joan Marie Jacob and Ms Nur Zarisa Binti Zaif with him) Messrs Ven & Associates Counsel for 3rd and 4th Defendant: Luqman bin Zainal Fikri (Mr Muizuddin Schanni Feisal with him) Messrs Luqman Zainal Counsel for 5th and 6th Defendant: Pn Etty Eliany Tesno (Pn Norfariza binti Ridzuan with her) Chambers of the Selangor State Legal Advisor S/N H/ocG8ykMkuzTbnqDBOz2Q